Kim Farrington v. Department of Transportation

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

KIM ANNE FARRINGTON, DOCKET NUMBER
Appellant, AT-1221-09-0543-B-2

v.

DEPARTMENT OF DATE: March 15, 2023
TRANSPORTATION,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stephanie L. Ayers, Esquire, and Thad M. Guyer, Esquire, Medford,
Oregon, for the appellant.

Elizabeth J. Head, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
denied corrective action in this individual right of action appeal. On petition for
review, the appellant makes the following arguments: (1) the statute at 5 U.S.C.
§ 2302(f)(2) does not apply to her because her disclosures were not made in the

1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
 2

normal course of her duties; (2) she proved that her disclosures were a
contributing factor in the agency’s decision to take various personnel actions
against her; (3) the agency abandoned its laches defense and the administrative
judge erred in her analysis of this issue; and (4) she was prejudiced by the
administrative judge’s delay in issuing the initial decision and her credibility
determinations were erroneous. Farrington v. Department of Transportation,
MSPB Docket No. AT-1221-09-0543-B-2, Petition for Review (PFR) File,
Tab 27. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fa ct;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
¶2 After fully considering the filings in this appeal, we conclude that t he
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. We MODIFY
the initial decision to find that 5 U.S.C. § 2302(f)(2) applies to this matter
because the appellant’s disclosures were made in the normal course of her duties .
We VACATE the administrative judge’s findings regarding laches and the
agency’s burden to prove by clear and convincing evidence t hat it would have
taken the actions absent the appellant’s whistleblowing disclosures . Except as
expressly modified herein, we AFFIRM the initial decision. 2

2
The Association of Flight Attendants-Communications Workers of America requested
leave to file an amicus curiae brief in support of the appellant. PFR File, Tab 16. The
Board, in its discretion, may grant such a request if the organization has a legitimate
 3

The statute at 5 U.S.C. § 2302(f)(2) applies to this appeal because the appellant
made her disclosures in the normal course of her duties , and we agree with the
administrative judge that the appellant did not prove that the agency took the
personnel actions against her in reprisal for her disclosures.
¶3 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA) , an
appellant may establish a prima facie case of retaliation for whistleblowing
disclosures and/or protected activity by proving by preponderant evidence that
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), 3
and (2) the whistleblowing disclosure or protected activity was a contributing
factor in the agency’s decision to take, fail to take, or threaten to take or fail to
take, a personnel action against her. 5 U.S.C. § 1221(e)(1); Webb v. Department
of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). If the appellant makes out a prima
facie case, the agency is given an opportunity to prove, by clear and convincing
evidence, that it would have taken the same personnel action in the absence of the
whistleblowing disclosure(s). 5 U.S.C. § 1221(e)(2); Webb, 122 M.S.P.R. 248,
¶ 6.
¶4 Prior to the WPEA’s enactment, disclosures made in the normal course of
an employee’s duties were not protected. Salazar v. Department of Veterans
Affairs, 2022 MSPB 42, ¶¶ 10-12. However, under a provision of the WPEA
codified as 5 U.S.C. § 2302(f)(2), such disclosures are protected if the appellant
shows that the agency took a personnel action “in reprisal for” the disclosures.

interest in the proceedings, and such participation will not unduly delay the outcome
and may contribute materially to the proper disposition thereof. 5 C.F.R.
§ 1201.34(e)(3). We find that an amicus curiae brief from the Association of Flight
Attendants will not materially contribute to the proper disposition of this matter, and we
deny its request.
On December 30, 2022, the appellant filed a motion for leave to file a new pleading,
which appears to be a request to expedite processing of this matter. PFR File, Tab 44.
Because this order is a final decision in this matter, we deny the appellant’s motion.
3
This appeal does not involve protected activity as set forth in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D).
 4

Id., ¶ 10 (citing 5 U.S.C. § 2302(f)(2)). This provision imposed an “extra proof
requirement” for these types of disclosures such that an appellant to whom
5 U.S.C. § 2302(f)(2) applies must prove by preponderant evidence that the
agency took a personnel action because of the disclosure and did so with an
improper, retaliatory motive. Id., ¶ 11 (discussing S. Rep. No. 112-155, at 5-6
(2012)).
¶5 The National Defense Authorization Act for Fiscal Year 2018 (2018
NDAA), signed into law on December 12, 2017, amended 5 U.S.C. § 2302(f)(2)
to provide that disclosures “made during the normal course of duties of an
employee, the principal job function of whom is to regularly investigate and
disclose wrongdoing,” are protected if the employee demonstrates that the agency
“took, failed to take, or threatened to take or f ail to take a personnel action” with
respect to that employee in reprisal for the disclosure. Salazar, 2022 MSPB 42,
¶¶ 13-14; Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017).
As we held in Salazar, 2022 MSPB 42, ¶¶ 15-21, the 2018 NDAA’s amendment
to 5 U.S.C. § 2302(f)(2), which clarified the prior version of that statute enacted
in the WPEA, applies retroactively to appeals pending at the time the statute was
enacted.
¶6 The administrative judge found that the appellant, as an Aviation Safety
Inspector who was responsible for ensuring compliance with Federal Aviation
Administration regulations and investigating and reporting wrongdoing, was
covered by 5 U.S.C. § 2302(f)(2). Farrington v. Department of Transportation,
MSPB Docket No. AT-1221-09-0543-B-2, Remand File, Tab 38, Initial Decision
(ID) at 13-14, 17. The administrative judge, in analyzing the “extra proof
requirement” regarding each personnel action, appears to have implicitly found
that each of the appellant’s four disclosures were made during the normal course
of her duties. ID at 29-40. On review, the appellant contends that the case is
governed by the Board’s earlier decision in Farrington v. Department of
Transportation, 118 M.S.P.R. 331 (2012), and its finding that “there was no duty
 5

speech.” PFR File, Tab 27 at 26. We supplement the initial decision to explicitly
find that the appellant made her disclosures in the normal course of her duties.
¶7 In its earlier decision, the Board relied on the appellant’s position
description and concluded that she failed to make a nonfrivolous allegation that
her disclosures to the National Transportation Safety Board (NTSB) were not
made within her normal job duties within the normal channels of reporting.
Farrington, 118 M.S.P.R. 331, ¶ 9. The appellant’s position description stated
that, as part of her surveillance duties and responsibilities, she is expected to
“conduct investigations of . . . aircraft incidents and accidents” and to
“[p]articipate[] in cabin safety related incident/accident i nvestigations of air
carriers and air operators.” Farrington v. Department of Transportation, MSPB
Docket No. AT-1221-09-0543-W-1, Initial Appeal File (IAF), Tab 19, Subtab B
at 1-2. The NTSB is an independent Federal agency charged with “investigating
every civil aviation accident in the United States,” it determines the probable
cause of accidents, and it issues safety recommendations aimed at preventing
future accidents. National Transportation Safety Board, About the NTSB,
https://www.ntsb.gov/about/pages/default.aspx (last visited Mar. 14, 2023). The
appellant provided the head of the NTSB Survival Factors Group with a copy of
her May 2003 written report and she was interviewed by the NTS B Survival
Factors Group after the NTSB initiated its investigation into the March 26, 2003
AirTran incident. Based on these facts, we supplement the initial decision to find
explicitly that the appellant’s two disclosures to the NTSB were made within the
normal course of her duties.
¶8 We now turn to the two disclosures that the appellant made to the Division
Manager, including (1) the May 2003 written report, which discussed, among
other things, lack of management support and funding approval, complaints a bout
training at AirTran facilities, and inability to perform surveillance activities, and
(2) her meeting with the Division Manager following an “All Hands” meeting on
June 17, 2003 (for which the Division Manager took some handwritten notes). ID
 6

at 18-20; IAF, Tab 19, Subtabs F, H. In its Opinion and Order, the Board noted
that there was a material dispute of fact concerning whether the appellant’s
communications to the Division Manager followed typical customs and practices
in the workplace for reporting regulatory and safety issues to higher-level
management. Farrington, 118 M.S.P.R. 331, ¶ 8. The Board defined “normal
channels” as when an “employee conveyed duty-related information to a
recipient, who in the course of his or her duties, customarily receives the same
type of information from the employee and from other employees at the same or
similar level in the organization as the employee.” Id., ¶ 6. The Board identified
some of the factors that were relevant to the determination, including whether the
communication complies with the formal and informal customs and practices in
the employee’s workplace for conveying such information up the chain of
command, whether the organization enforces a strict hierarchical chain of
command requiring that communications must go through lower-level supervisors
before being elevated to higher management, and whether the information was
conveyed to the recipient in the organization’s commonly accepted manner or
method for presenting such information for management consideration. Id.
¶9 The appellant’s position description stated that she would have “frequent
contact” with, among other groups, “field and regional office management” and
that the “purpose of these contacts is to . . . provide feedback, communicate
findings, or resolve issues and problems.” IAF, Tab 19, Subtab B at 2. It is
undisputed that the Division Manager was the appellant’s fourth- or fifth-level
supervisor, Farrington, 118 M.S.P.R. 331, ¶ 8, and the information that she
disclosed in the written report and subsequent meeting with the Division Manager
was information that she learned during the normal course of her duties. On
review, the appellant cites to the Division Manager’s testimony that he had an
“open door policy,” but she was never told that she had a duty to provide the
Division Manager with the written report or speak to him after the June 17, 2003
meeting. PFR File, Tab 27 at 12, 15. In her deposition, the appellant testified
 7

that she never spoke to the Division Manager prior to sending him the May 2003
report and she had never gone to him on a work -related issue. IAF, Deposition,
Subtab 10 at 276 (testimony of the appellant). However, she acknowledged that ,
when there was a disagreement at the local level about an issue, the issue was
elevated, and she does not appear to dispute the testimony of the Division
Manager and the Assistant Division Manager that it was common for Aviation
Safety Inspectors to work through local managers or to raise directly issues to the
regional level. IAF, Deposition, Subtab 1 at 12 (testimony of the Division
Manager), Subtab 7 at 3 (testimony of the Assistant Division Manager) ,
Subtab 10 at 277 (testimony of the appellant).
¶10 Concerning the May 2003 written report, the appellant acknowledged in h er
deposition that she raised issues that she had attempted to pursue through her
normal supervisory channels. IAF, Deposition, Subtab 10 at 276 (testimony of
the appellant). The Assistant Division Manager responded in writing to the
appellant’s May 2003 report to the Division Manager, she acknowledged the
safety issues that the appellant raised involving AirTran and her concerns about
her own work environment, and she described the steps that the agency was
taking to investigate these concerns. IAF, Tab 19, Subtab G. Given that the
content of the May 2003 report was information that she learned during the
course of her duties as an Aviation Safety Inspector, she provided the report to
someone in her chain of command, it was a common practice for aviatio n safety
inspectors to elevate disagreements on such issues to a higher level, and the
agency’s formal response to her concerns, we find that the appellant’s May 2003
written report to the Division Manager was made in the course of her normal
duties through normal reporting channels.
¶11 Concerning the June 17, 2003 meeting, the Division Manager’s handwritten
notes from this meeting included references to, among other things, “no crew
 8

members trained hands on” with an arrow and the citation “121.417.” 4 IAF,
Tab 19, Subtab H. The appellant on review cites her testimony that she reported
to the Division Manager that her findings and recommendations were not being
addressed, that flight attendants had not been trained on the proper tail cone exit,
and that passengers were at risk. PFR File, Tab 27 at 12. Thus, the appellant
discussed with the Division Manager during this meeting her concerns based on
information that she learned as an Aviation Safety Inspector. Neither party
disputes that the Division Manager held regular “All Hands” meetings in the field
offices, and he would often invite Aviation Safety Inspectors to speak with him
afterwards, he had an “open-door policy,” and Aviation Safety Inspectors
“[r]outinely” took advantage of his open-door policy to speak to him about
various issues. IAF, Deposition, Subtab 1 at 10-12, 17-18 (testimony of the
Division Manager). Given that the appellant’s conversation with the Division
Manager occurred in the workplace, after a meeting in which the Division
Manager invited Aviation Safety Inspectors to speak with him privately
afterwards, the content of their conversation focused on work-related issues, and
her position description contemplates such communications with field and
regional office managers, we find that any disclosures made to him during this
meeting were made during the normal course of her duties through normal
reporting channels. Because we have found that all of the appellant’s disclosures
were made in the normal course of her duties as an Aviation Safety Inspector , the
statute at 5 U.S.C. § 2302(f)(2) applies to this matter.
¶12 Even if we assume for the purposes of our analysis that the appellant proved
that she disclosed a violation of law, rule, or regulation and/or a substantial and
specific danger to public health and safety pursuant to 5 U.S.C. § 2302(b)(8)(A),
we agree with the administrative judge that the appellant failed to prove that the
agency took the personnel actions against her in reprisal for her disclosures. ID

4
The regulation at 14 C.F.R. § 121.417 discusses crewmember emergency training.
 9

at 29-40. Because we affirm the administrative judge’s finding in this regard, we
need not address the appellant’s arguments on review concerning contributing
factor or whether the agency proved by clear and convincing evidence that it
would have taken the action(s) at issue absent the disclosures. PFR File, Tab 27
at 28; see Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016)
(finding that it was inappropriate for the administrative judge to determine
whether the agency proved by clear and convincing evidence that it would have
denied the appellant’s access to restricted areas and classified documents in the
absence of his whistleblowing when she found that he failed to prove his prima
facie case). To the extent that the administrative judge made findings about
laches that relieved the agency of its obligation to prove by clear and convincing
evidence that it would have taken the same actions absent the appellant’s
disclosures, ID at 41-45, we vacate the administrative judge’s findings in this
regard.

The appellant’s arguments regarding the quality of the hearing recording, the
administrative judge’s credibility determinations, and her delay in issuing the
initial decision do not warrant a different outcome.
¶13 The appellant contends on review that the administrative judge’s “extreme”
delay in issuing the initial decision “severely prejudiced” her and violated her due
process rights, Board procedures, and statutory mandates. PFR File, Tab 3 at 6,
Tab 27 at 5. In pertinent part, she asserts that she was prejudiced because the
audio recording from the 2-day hearing in 2013 was inaudible and that due to the
delay in issuing the initial decision, the original court reporter passed away, the
original court reporting company dissolved, and there was no usable audio
recording of the hearing. PFR File, Tab 27 at 5-6. The submissions on review
describe the parties’ efforts to jointly contract with another court reporter to
generate a transcript of the hearing under these circumstances. E.g., PFR File,
Tabs 1, 3, 5, 7, 9, 11. The Office of the Clerk of the Board subsequently granted
the appellant’s motion to file transcripts of the hearing proceedings. PFR File,
 10

Tabs 20, 22. However, instead of filing the transcripts in their entirety, the
appellant reprinted excerpted portions of the 2013 hearing transcript in her
supplemental petition for review. PFR File, Tab 27 at 12 -26.
¶14 We acknowledge that the audio recording of the 2013 two-day hearing is
virtually inaudible. The appellant’s arguments on review do not persuade us that
she was prejudiced by the delay between the close of the record and the date that
the initial decision was issued. For instance, she asserts on review that the initial
decision should be disregarded because it “barely contains any purported quotes
of testimony,” and “has few if any references to some witnesses,” and she
requests that the Board review the administrative judge’s “harsh” credibility
findings. Id. at 7. However, the administrative judge who issued the initial
decision is the same administrative judge who was present during the 2-day
hearing in 2013. The administrative judge’s credibility determinations are
implicitly based on witness demeanor, Little v. Department of Transportation,
112 M.S.P.R. 224, ¶ 4 (2009), and the appellant’s disagreement with the
administrative judge’s findings, without more, is insufficient to overcome the
deference to which such determinations are entitled. See, e.g., Purifoy v.
Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016) (explaining
that the Board must give “special deference” to an administrative judge’s
demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly
discussed”); Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002) (stating that the Board must give deference to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so). Importantly, the appellant does not contend that the administrative
judge was incapacitated or otherwise unable to take notes during the hearing or
observe the testimony of witnesses, which might call her credibility
determinations into question, nor does the appellant provide any authority to
 11

support her assertion that the administrative judge erred by failing to include any
quoted testimony.
¶15 We have reviewed the excerpts of the 2013 hearing transcript, which largely
involve testimony concerning the appellant’s disclosures, various agency
officials’ knowledge of the disclosures, circumstances surrounding some of the
personnel actions, and the clear-and-convincing factors. E.g., PFR File, Tab 27
at 12-26. However, the excerpted testimony does not change our analysis of
whether any of the appellant’s disclosures were made in the normal course of her
duties through normal channels or whether she proved that the agency took the
personnel actions in reprisal for her disclosures.
¶16 Finally, to the extent that the appellant may be arguing that her rights were
harmed by the virtual inaudibility of the hearing tapes, we disagree. In Harp v.
Department of the Army, 791 F.2d 161, 163 (Fed. Cir. 1986), the U.S. Court of
Appeals for the Federal Circuit rejected a petitioner’s claim that the
unavailability of a hearing transcript constituted harmful error per se, requiring
reversal of the Board’s decision. The court found that “such loss is not fatal” to
the court’s ability to review a Board appeal. The court analyzed several factors to
determine whether a fatal flaw occurred, such as whether the appellant
established that he was prejudiced by the loss of the hearing transcript, whether
the appellant showed that the administrative judge failed to consider or misused
any particular testimony from the hearing, and whether other evidence existed i n
the record that would support the administrative judge’s findings. Id.; see also
Kemp v. Department of Veterans Affairs, 154 F. App’x 912, 914 (Fed. Cir.
2005) 5; Henderson v. Office of Personnel Management, 109 M.S.P.R. 529, ¶ 5 n.1
(2008). Here, we find that the appellant did not show that she was prejudiced by
the virtual inaudibility of the hearing tapes and she did not demonstrate that the

5
The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662,
¶ 13 n.9 (2016).
 12

administrative judge failed to consider or misused any particular testimony of the
witnesses that might have caused a different result in this case. Furthermore,
although some or all of the hearing tapes may have been virtually inaudible, the
record in this case was sufficiently developed to provide a meaningful review of
the issues raised by the appellant. 6

NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

6
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
 13

(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that su ch action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
 14

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later t han 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
 15

Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
 16

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.